With this latest pardon controversy — and the possibility of more self-serving pardons to come from President Bush (Libby, Cheney, et al.?) — there’s another rush of commentary suggesting we curtail or even abolish the president’s pardon power. For my own part, though, not only am I against getting rid of the power, I actually think this current crop of pardons is pretty shabby in terms of stinginess.
President Bush’s pardons (these and the ones from earlier in his administration) are mostly pardons for people who committed relatively minor crimes and got relatively minor punishment and have long since served their sentences.
I understand the symbolic importance of clearing people’s names. But that’s pretty thin gruel. I’d much rather see some people doing serious hard time getting sprung from prison. Long term imprisonment is a life-crushing, brutal thing. Often the punishment fits the crime. But certainly there are more than a few people languishing in prison who, either because of an original miscarriage of justice or subsequent meritorious acts, have a claim on a second chance?
I think the vast majority of people in prison on low level federal drug charges don’t deserve the sentences they have. But that would involve so many people that it’s not realistic as a wrong to be righted by pardons. And the use of pardons I’m advocating does create an inevitable problem of arbitrariness — some prisoners have grace come down upon them out of the blue and, inevitably, some others no less deserving get nothing. The whole concept of the pardon power is in uncomfortable tension with the rule of law. In many ways, it’s archaic. But I think some leavening of mercy is an essential escape valve to make the justice system actually just. In its punishing capacity, the state is a vast, impersonal, crushing, awful thing. Some sliver of hope is crucial.
Late Update: To drive home the point above, the current formal pardon process requires petitioners to go through the DOJ’s Pardon Attorney, a specific career DOJ attorney charged with evaluating pardons. But the Pardon Attorney’s petition guidelines require that you have already been out of prison for five years before you even apply. So the only pardons the system even envisages are the essentially symbolic sort — pardon after you’ve already done the time. Commutations are different, of course. But the strictures are pretty stiff there too.
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I went on C-Span this morning. I’ve been on TV plenty of times, but not in a while. And this was the first time my older son seemed older enough (25 months) to get the concept, that it was kind of neat seeing his dad on TV. So after I left the studio I called my wife.
Apparently it was neat for about two minutes. Then he wanted to watch Madagascar again.
As you know, President Bush took the close to unprecedented step of revoking one of his own pardons yesterday. In fact, from what I can tell, it may actually be unprecedented, since the earlier cases appear to have been instances of revoking a predecessor’s pardon. (In other words, this looks like the first revocation on the basis of a goof rather than a difference of policy or opinion.) That’s what happened in 1869 when, three days into his presidency, President Grant cancelled two pardons his predecessor President Johnson had given.
In any case, it turns out there’s a blog exclusively focused on the pardon power — pardonpower.com. One of the contributors to the blog, P.S. Ruckman, Jr., did a post earlier today on whether or not the president can revoke a pardon. And he says he’s sure the president can do so.
But I’m not sure that’s the last word on the matter.
Like others who say that the president can rescind a pardon, Ruckman appears to base his argument on in re Du Puy from 1869. In that case, the Court held that President Grant was within his rights to rescind President Johnson’s pardons because they had not yet been delivered to the grantees.
But last night a reader sent in some testimony from the hearings on the Clinton pardons that took place just after President Bush was sworn in in 2001. As you’ll remember, they focused heavily on the infamous Marc Rich pardon. And the question came up whether there wasn’t something President Bush could do to undo Clinton’s pardon.
Key testimony was provided by Margaret Colgate Love, herself a contributor to pardonpower.com and also former DOJ Pardon Attorney from 1990-1997.
When asked by Rep. Hostettler (R) whether President Bush couldn’t undo Clinton’s pardons under the Du Puy case, she seemed to say that Du Puy had been superseded in this regard by Biddle v. Perovich from 1927 …
No, once the pardon warrant is signed, that is the public act that accomplishes the clemency action. I believe that Supreme Court case law has made it pretty clear that a pardon is a public act, and so all that business about the deeds and delivery, I think, has pretty much has been overtaken by the Biddle case; that it is a public act and once a warrant is signed–I mean, know from my own experience that we did not deliver pardon warrants, individual pardon warrants, to the recipients sometimes for weeks. I am embarrassed to say, because we just did not–I am sure, frankly, if you look, I suspect that a number of the 176 have not gotten theirs yet, either, and that is a warrant that is signed by Roger Adams, who is the current Pardon Attorney. Roger Adams does not have any authority to do anything other than simply deliver what the President did, and this is a document that somebody can frame and hang on their kitchen wall or something. But it is nothing more than a symbol, a sign of what the President did in signing a document with 140 names on it.
This is not my area of specialty. So I won’t try to get too far into the technicalities. But from a quick layman’s reading, the issue in Biddle seems to be the reasoning that the presidential pardon power, which grew from royal prerogative, was no longer a private act of grace from a sovereign but a part of the constitutional system. And as such, whether or not it had been delivered was irrelevant.
There are a few things that aren’t completely on point in Biddle. It was about a commutation, not a pardon. And that still leaves the issue of whether the pardon didn’t really become valid until the Pardon Attorney ‘executed’ it. But Love seems to have expressed a pretty clear opinion on that too.
Certainly, Love’s personal opinion isn’t definitive. But as a former Pardon Attorney herself and someone who’s now in private practice specializing in pardons, I would think she’s as firmly rooted in the relevant precedents and law as anyone. So until I see more, I’m back to thinking that President Bush’s revocation of this pardon just may not fly.
As I wrote last night, I’m eager to hear from experts in the field who can shed more light on this.
Only a day after issuing a presidential pardon to Isaac Robert Toussie, a real estate scammer from Brooklyn, President Bush decided to reverse the pardon, after it emerged that Toussie’s father had contributed almost $30,000 to the Republican party.
Pardons are absolute. They can’t be reviewed or reconsidered or overturned, even by the president who issued them. According to the White House press release, President Bush had sent a “Master Warrant of Clemency” with 19 names to the Pardon Attorney at DOJ to execute. But he hadn’t executed it yet. In other words, the White House is claiming none of these folks had actually been pardoned yet. So the president can just send word now not to ‘execute’ that one pardon.
I’d be curious to hear from constitutional lawyers on this. But I’m not sure the constitution would recognize this distinction. And to be arch about it, I think the unitary theory of the executive would suggest that the pardon is full and irrevocable once the president says he’s doing it. The power is the president’s — not the pardon attorney’s once the president sends on the request. The constitution doesn’t recognize or take any cognizance of the administrative procedures they’ve developed at the Justice Department.
I would think Toussie’s attorneys could make a pretty solid argument that the bell’s been rung. Too late.
Any constitutional scholars out there with nothing better to do on Christmas eve than to toss this one around?
Late Update: Or maybe not. A knowledge says there’s an 1869 case (in re Du Puy) that holds that the president can take back the pardon as long as it hasn’t been delivered to the grantee. A quick read of this suggests that this decision binding. That’s an old legal text citing this case to argue what I’ve italicized in this quote: “A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance, and a pardon by an outgoing President may be revoked by his successor before delivery.”
Late Late Update: A reader passes on some new information suggesting that Du Puy may no longer be the operative precedent in this case and that the Toussie pardon is not revocable. But there are limits on the hours even I’m willing to keep. So this will have to wait for tomorrow — jmm, 12/24/08, 11:22 PM.